CTHULHU AWAKENS  NFT LICENSE TERMS (V.1.0)

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These Cthulhu Awakens NFT License Terms (these “Terms” ) set forth the terms and conditions for certain rights granted by Asylum Labs Inc., a California C corporation (“AsylumLabs” ) to the individual owner (“NFT Owner” ) of the NFT (as defined below), and certain related obligations of NFT Owner.  Each NFT Owner may also be referenced as a “Party”  or together as the “Parties”  herein.  

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THESE TERMS CREATE A BINDING LEGAL AGREEMENT BETWEEN NFT OWNER AND ASYLUM LABS , AND INCLUDE AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY.

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1. Definitions.

   1. “Commercial Use”  means any revenue-generating or other commercial use.

   2. “Covered Works”  means the NFT Art and any modification or derivative work thereof, in any medium, whether or not considered a “derivative work” under the U.S. Copyright Act, 17 U.S.C. § 101, in each case created by or on behalf of NFT Owner hereunder. 

   3. “License Term”  means the period of time during which NFT Owner is the exclusive, lawful owner of the NFT, and such ownership is recorded on the applicable blockchain.

   4. “NFT”  means an identifiable, non-fungible, non-replicable, transferable, cryptographic token on the Ethereum blockchain or another blockchain approved by Asylum Labs, including those that conform to the ERC-721 standard, which token is governed by these Terms as specified by Asylum Labs from time to time (which Asylum Labs may do by providing notice in a public manner, such as on its website or social media accounts associated with the NFT or NFT Art, or with any related Asylum Labs work, product, service or other offering).

   5. “NFT Art”  means the pictorial, graphic, audiovisual, or other artwork that is specifically linked with the NFT when initially issued or minted by or on behalf of Asylum Labs.

2. Copyright License to NFT Art.

   1. “License Grant.”  Subject to the terms and conditions herein, Asylum Labs hereby grants to NFT Owner a limited, revocable, non-exclusive, non-transferable, worldwide, royalty-free license, under Asylum Labs' copyrights in the NFT Art, solely to do the following during the License Term: (a) create modifications or derivative works of the NFT Art to create Covered Works; (b) reproduce, distribute and display Covered Works for NFT Owner’s personal, non-commercial use; and (c) reproduce, distribute and display Covered Works for NFT Owner’s Commercial Use, up to a total aggregate value of $100,000 (one hundred thousand US Dollars) for such Commercial Use.  The above license is sublicenseable only to NFT Owner’s service providers to exercise such rights for the benefit of and on behalf of NFT Owner; provided that, all acts and omissions of such providers or of any third party acting on NFT Owner’s behalf otherwise with respect to Covered Works will be deemed to be acts and omissions of NFT Owner for purpose of these Terms, and NFT Owner will be responsible therefor.     

   2. “License Exclusions.”  NFT Owner shall not do (directly or via any third party acting on NFT Owner’s behalf) or permit any third party to do any of the following: (a) create or use any Covered Work in any way outside the scope of license expressly granted in Section 2.1 above; (b) create or use any Covered Work in any way that would violate any law or rights of any entity or person; (c) create or use any Covered Work that is (including use in a manner that is) libelous, vulgar, defamatory, threatening, harassing, ethnically or racially offensive, otherwise offensive, harmful, abusive, scandalous, obscene, pornographic or unlawful or encourages a criminal offense; (d) use any Covered Work, alone or in combination with other material, as a trademark, logo, or other indictor of source, except that NFT Owner may use the Covered Work, alone or in combination with other material of NFT Owner, as an avatar or profile picture in connection with NFT Owner’s personal social media presence; (e) create or use any Covered Work that contains, or use any Covered Work together with or in close proximity to, any trademark, logo, or other source indicator of Asylum Labs or any third party; or (f) create or use any Covered Work in any way that is expressly or implicitly disparaging or otherwise harmful to Asylum Labs, any of its licensors or affiliates, or any of its or their works, products, services or other offerings.

   3. “Reservation of Rights.”  Except for the license to copyrights expressly granted in Section 2.1 above, Asylum Labs or its licensors retain all right, title, and interest in and to such copyrights, and NFT Owner will have no other right, title or interest therein or in or to any other intellectual property of Asylum Labs or its licensors, whether express or implied. The NFT Art is, and will continue to be, in its entirety, the sole property of Asylum Labs or its licensors, as applicable.  Without limiting the above, NFT Owner receives hereunder no license or other right to use any trademark, logo, or other source indicator of Asylum Labs or its licensors.

   4. “Covered Works.”  NFT Owner retains its own right, title and interest in any Covered Works created by or on behalf of NFT Owner hereunder, subject to the rights granted to Asylum Labs in the Covered Works below and to Asylum Labs or its licensors’ right, title and interest in the underlying NFT Art. NFT Owner hereby grants and agrees to grant to Asylum Labs an irrevocable, perpetual, non-exclusive, worldwide, royalty-free, fully-paid, transferable license, with the right to sublicense through multiple tiers, to use, reproduce, display, create modifications or derivative works of, distribute, and otherwise exploit in any manner, the Covered Works and Feedback (as defined below).  To the extent reasonably necessary to effect or support the license granted by NFT Owner above, NFT Owner hereby waives and agrees to waive (or if not waivable, agree not to assert) any rights of privacy or publicity, or any moral rights or other similar rights, with respect to Covered Works or Feedback.  As used above, “Feedback” means any comments, feedback, suggestions, ideas, or other submissions by NFT Owner to Asylum Labs regarding the NFT or NFT Art, or any related work, product, service or other offering of Asylum Labs.

3. Termination.

   1. “Termination.”  The License Term will continue indefinitely until terminated automatically (a) if NFT Owner is no longer the exclusive, lawful owner of the NFT, or (b) upon any breach by NFT Owner of these Terms.

   2. “Effect of Termination.”  Upon termination of the License Term for any reason: (a) the license granted to NFT Owner in Section 2.1 above (including any sublicenses granted by NFT Owner) will terminate; (b) NFT Owner will cease all creation, reproduction, distribution, display or other use of Covered Works, and promptly destroy all Covered Works within its control; and (c) any NFT Owner obligations which have previously accrued hereunder, as well as the following provisions (and any other provisions which should reasonably survive) will survive: 1 (Definitions), 2.2 (License Exclusions), 2.3 (Reservation of Rights), 2.4 (Covered Works), 3.2 (Effect of Termination), 4 (Disclaimer and Limitations of Liability) and 5 (Miscellaneous).  

4. Disclaimer and Limitations of Liability.

   1. “DISCLAIMER.”  THE NFT ART IS LICENSED TO NFT OWNER HEREUNDER “AS-IS,” WITH ALL FAULTS.  ASYLUM LABS HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND RELATING TO THE NFT, THE NFT ART OR THESE TERMS (WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING BY CUSTOM, TRADE USAGE OR COURSE OF DEALINGS), INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR PURPOSE. NFT OWNER ACKNOWLEDGES AND AGREES THAT: (A) THE NFT IS NOT A SECURITY FOR PURPOSES OF U.S. FEDERAL OR STATE LAW AND (I) DOES NOT ENTITLE NFT OWNER TO PARTICIPATE IN THE MANAGEMENT OF ASYLUM LABS OR TO RECEIVE ANY PROFITS FROM THE OPERATIONS OF ASYLUM LABS AND (II) DOES NOT INCLUDE ANY VOTING OR OTHER SIMILAR RIGHTS; (B) TO THE EXTENT THERE IS A PRICE OR MARKET FOR BLOCKCHAIN ASSETS, SUCH MARKETS AND PRICES ARE EXTREMELY VOLATILE, AND VARIATIONS IN THE PRICE OF OTHER DIGITAL ASSETS COULD MATERIALLY AND ADVERSELY AFFECT THE VALUE OF ANY DIGITAL ASSET(S) OWNED BY NFT OWNER, SUCH AS THE NFT, AND THERE IS NO GUARANTEE THAT THE NFT WILL HAVE OR RETAIN ANY VALUE; (C) THERE ARE RISKS ASSOCIATED WITH USING INTERNET-NATIVE ASSETS (NON-FUNGIBLE TOKENS, CRYPTOCURRENCIES, ETC.), INCLUDING THE RISK OF HARDWARE, SOFTWARE OR INTERNET CONNECTION FAILURES, THE RISK OF MALICIOUS SOFTWARE INTRODUCTION, AND THE RISK THAT THIRD PARTIES MAY OBTAIN UNAUTHORIZED ACCESS TO INFORMATION STORED WITHIN NFT OWNER’S DIGITAL “WALLET”, AND ASYLUM LABS WILL NOT BE RESPONSIBLE FOR ANY OF THE FOREGOING, HOWEVER CAUSED; (D) ASYLUM LABS DOES NOT MAKE ANY PROMISES OR GUARANTEES ABOUT THE AVAILABILITY OF THE NFT ART ON THE INTERNET OR THAT IT WILL HOST THE NFT ART AT ANY SPECIFIC LOCATION OR FOR ANY SPECIFIC PERIOD OF TIME; (E) UPGRADES TO THE ETHEREUM BLOCKCHAIN, A FORK IN THE ETHEREUM BLOCKCHAIN, A FAILURE OR CESSATION OF ETHEREUM, OR A CHANGE IN HOW TRANSACTIONS ARE CONFIRMED ON THE ETHEREUM BLOCKCHAIN MAY HAVE UNINTENDED ADVERSE EFFECTS ON ALL RELATED BLOCKCHAINS USING SUCH TECHNOLOGIES, AND ON THE NFT; AND (F) ASYLUM LABS IS NOT RESPONSIBLE FOR ANY TRANSACTION BETWEEN NFT OWNER AND A THIRD PARTY (E.G., NFT OWNER’S PURCHASE OR SALE OF THE NFT FROM A THIRD PARTY ON THE SO-CALLED “SECONDARY MARKET”) OR FOR ANY CONSEQUENCES OF SUCH TRANSACTION (E.G., ANY COSTS OR TAXES BEING DUE WITH RESPECT TO SUCH TRANSACTION), AND ASYLUM LABS SHALL HAVE NO LIABILITY IN CONNECTION WITH ANY SUCH TRANSACTION OR ITS CONSEQUENCES.

   2. “LIMITATIONS OF LIABILITY.”  NEITHER ASYLUM LABS  NOR ITS LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS OR REVENUE, ARISING FROM OR RELATING TO THE NFT, THE NFT ART OR THESE TERMS UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR OTHER TORT, CONTRACT, OR ANY OTHER THEORY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, ASYLUM LABS'S MAXIMUM AGGREGATE LIABILITY TO NFT OWNER FOR ANY DAMAGES ARISING FROM OR RELATING TO THE NFT, THE NFT ART OR THESE TERMS UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR OTHER TORT, CONTRACT, OR ANY OTHER THEORY), SHALL BE LIMITED TO THE GREATER OF (A) THE AMOUNT INITIALLY PAID BY NFT OWNER TO ASYLUM LABS FOR THE NFT (IF ACQUIRED FROM ASYLUM ALBS DURING THE INITIAL MINT), WHICH IN ASYLUM LABS' DISCRETION MAY BE SATISFIED VIA RETURN IN WHOLE OR PART OF CONSIDERATION SO PAID BY NFT OWNER OR (B) $100 (ONE HUNDRED US DOLLARS).   SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO NFT OWNER.

5. Miscellaneous.

   1. “Modification of Terms.”  Asylum Labs may from time to time amend these Terms prospectively.  If it does so, it will provide notice in a public manner, such as on its website or social media accounts associated with the NFT or NFT Art, or with any related Asylum Labs work, product, service or other offering.  NFT Owner agrees that its continued creation, reproduction, distribution, display or other use of any Covered Works constitutes its agreement to the amended Terms.  If NFT Owner does not agree to any amended Terms that Asylum Labs publishes, NFT Owner must cease creating, reproducing, distributing, displaying or otherwise using Covered Works.  Except as set forth above in this paragraph, these Terms may be amended or modified only by an express writing signed by Asylum Labs.

   2. “Injunctive Relief.”  NFT Owner acknowledges that its breach of these Terms would cause substantial harm to Asylum Labs that could not be remedied by payment of damages alone.  Accordingly, Asylum Labswill be entitled to seek preliminary and permanent injunctive relief, and other equitable relief, for any such breach, without any requirement to prove damages or post bond.

   3. “Compliance with Laws.”  NFT Owner agrees to comply with all laws, rules and regulations applicable to its creation, reproduction, distribution, display or other use of Covered Works, or to its activities with respect to the NFT.  

   4. “Indemnification.”  NFT Owner will indemnify and hold harmless Asylum Labs, its affiliates and licensors, and its and their respective officers, directors, employees and agents, against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs and expenses, including reasonable attorneys’ fees, arising from or relating to any third party claim relating to NFT Owner’s creation, reproduction, distribution, display or other use of the Covered Works or other activities under these Terms or with respect to the NFT (except in each case to the extent caused by Asylum Labs' gross negligence or willful misconduct).  Asylum Labs reserves the right to assume control of the defense and settlement of any such claim, action, proceeding or suit, and NFT Owner will reasonably cooperate with Asylum Labs with respect thereto. 

   5. “Assignment.”  NFT Owner may not assign or otherwise transfer these Terms or any of its rights hereunder, or delegate any of its obligations hereunder, without the prior written consent of Asylum Labs in its sole discretion.  For clarity, in the event NFT Owner transfers the NFT to a third party, such third party will receive its own license (if any) pursuant to the license terms applicable to the NFT at such time (as specified by Asylum Labs), and NFT Owner will not transfer these Terms or its rights hereunder to such third party.  Any purported assignment or delegation by NFT Owner without such consent will be null and void.  Asylum Labs may freely assign, transfer or delegate these Terms, in whole or in part, from time-to-time.  These Terms will be binding upon and inure to the benefit of the Parties’ successors and permitted assigns.  

   6. “Dispute Resolution.” 

      1. Applicable Law.  NFT Owner and Asylum Labs each agree that any dispute arising out of  or relating to these Terms, including the interpretation, validity, performance, or breach thereof, or the use of the NFT or NFT Art (a “Dispute”), will be governed by the substantive laws of the State of Delaware, U.S.A., without regard to its or any other jurisdiction’s conflicts of laws principles that would apply another law.  Any action or proceeding by NFT Owner relating to any claim arising from or relating to these Terms, the NFT or the NFT Art must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued.  The United Nations Convention for the International Sale of Goods is hereby disclaimed.  

      2. Arbitration. 

         1. Any Dispute shall be resolved exclusively in the matter set forth herein.  

         2. A Party shall first give written notice to the other Party of the Dispute and the amount of any claim.  The Parties shall then meet in person or by videoconference within sixty (60) days to attempt to resolve the Dispute. Except as necessary to avoid irreparable harm or the expiration of a pertinent statute of limitations, no arbitral or judicial proceeding shall be commenced until such meeting has been had or refused by the opposing Party.

         3. Any Dispute not amicably resolved shall be resolved exclusively by binding arbitration administered by the American Arbitration Association (AAA) under the United States Federal Arbitration Act.

         4.  The arbitration shall be conducted by a single arbitrator under the Commercial Rules, or, if required by the AAA, the Consumer Rules.  To review the rules and for further information on the arbitration process, visit www.adr.org.

         5. The place of the arbitration shall be Wilmington, Delaware, U.S.A., but hearings may be held by videoconference or in such other places as the Parties may agree or as the arbitrator may order.

         6. In the event that the AAA is unable or unwilling to administer the arbitration, a substitute arbitrator shall be ordered by the court.

         7. At any time before the entry of a final judgment from which no further appeal may be taken, Asylum Labs may require the other Party to participate in person in non-binding mediation, the administrative cost and mediator compensation of which shall be borne solely by Asylum Labs.

         8. The right and obligation to arbitrate under this Section 5.6(b) shall extend to any claim by or against a parent, subsidiary, affiliate, agent, officer, director, contractor, or employee of a Party.

         9. Absent Asylum Labs' written consent, the arbitrator shall have no authority to conduct proceedings on a class or consolidated basis.  Provided, however, that in the event that Asylum Labsis the subject of twenty five (25) or more substantially similar arbitration claims, Asylum Labs may in its sole discretion request the appointment of a special arbitrator to determine whether issues of law and/or fact common to individually filed claims should be decided on a consolidated basis.

         10. Except as necessary to vacate or confirm any arbitral award, or otherwise as required by the law, the existence of and evidence in the arbitration shall be strictly confidential, unless already known to the disclosing Party or in the public domain without fault of the disclosing Party. 

         11. The prevailing Party shall be entitled to an award of all costs, expenses, and attorneys’ fees reasonably incurred in the successful prosecution or defense of any claim. In the event that a claimant shall recover less than the highest written offer made before the filing of a demand for arbitration, the respondent shall be deemed to be the prevailing party for purposes of this subsection (xi).

         12. Without derogation of the obligation to arbitrate, any judicial proceeding in respect of a Dispute shall be conducted exclusively in the state or federal courts in or for New Castle County, Delaware, U.S.A., except that any judgment thereof or any arbitral award may be enforced in any court of competent jurisdiction. THE PARTIES IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY A JURY. 

         13. If any part of this Section 5.6 (b) is deemed invalid as a matter of law, then it shall be severed and the remaining portions of this section shall remain in effect

   7. “Other.”  Headings are provided for convenience only and will not be used to interpret the substance of these Terms.  Unless the intent is expressly otherwise in specific cases, the use of “include,”  “includes”  or “including”  herein will not be limiting and “or”  will not be exclusive.  These Terms set forth the entire understanding between the Parties with respect to the subject matter hereof, and supersede all prior writings, discussions and understandings, expressed or implied, between the Parties concerning such subject matter.  No waiver of any breach of any provision herein will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision, and no waiver will be binding unless made in an express writing signed by the waiving Party.  In the event that any provision of these Terms is held to be void or unenforceable, the remainder of these Terms shall continue in force, and the severed provision shall be replaced by an enforceable provision most closely reflecting the intention of Asylum Labs.